Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Morris Branson Theatre, LLC v. Cindy Lee, LLC

Court of Appeals of Missouri, Southern District, First Division

June 15, 2017

MORRIS BRANSON THEATRE, LLC, Plaintiff-Respondent,
v.
CINDY LEE, LLC, et al., Defendants-Appellants.

         APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Larry G. Luna, Special Judge.

          OPINION

          JEFFREY W. BATES, P.J.

         In this landlord-tenant dispute, the trial court found in favor of Morris Branson Theatre, LLC (Landlord) on its action seeking damages for breach of a lease agreement (Lease) by Cindy Lee, LLC (Tenant). The trial court found against Tenant on its affirmative defense that Tenant was justified in terminating the Lease because Landlord failed to substantially complete certain repairs within a six-month period.

         Tenant presents two points on appeal. In Point 1, Tenant contends the trial court's finding on Tenant's affirmative defense is not supported by substantial evidence. In Point 2, Tenant contends the trial court's finding on Tenant's affirmative defense is against the weight of the evidence. Because Tenant bore the burden of proving its affirmative defense and failed to do so, neither point has merit. Accordingly, we affirm the judgment.

         Factual and Procedural Background

         In September 2011, the parties executed the Lease. Tenant agreed to pay Landlord monthly rent to occupy restaurant and club space in a building adjacent to the Dick Clark Theater in Branson, Missouri. The term of the lease ran from September 30, 2011 through December 31, 2014. Rent was due on the first of each month, commencing on April 1, 2012. In relevant part, Paragraph 17 of the Lease (hereinafter referred to as Paragraph 17) stated:

FIRE OR OTHER CASUALTY. In the event the Premises is totally destroyed or partially damaged by fire or other casualty making it inoperable for a period of longer than ninety (90) days, either party may, at is option, terminate this Agreement…. In the event the parties do not so terminate this Lease, then, subject to the following provisions of this Paragraph 17, Landlord may proceed as soon as is reasonably practicable, at its sole cost and expense to the extent of insurance proceeds available, if any, to repair and restore the Premises to substantially the same condition as that before the damage occurred…. In the event Landlord does not complete such repair and restoration within six (6) months from the date of damage or destruction, Tenant may terminate this Agreement. …

         A café and club (the Café) opened by Tenant was damaged by a tornado on February 29, 2012.

         Following repairs, the Café re-opened on April 20, 2012. Except for "a few" days, the Café operated continuously from that date through August 25, 2012. On that day, there was a leak in the Café's kitchen area. A roofing company hired by Landlord immediately began work on the leak. Tenant paid the August rent when due. On August 29, 2012, which was six months from the date of the tornado damage, Tenant submitted a letter to Landlord "electing to terminate" under "[P]aragraph 17." Tenant tendered prorated rent through September 10, 2012, vacated the premises as of that date and paid no further rent to Landlord.

         In mid-September 2012, Landlord filed suit against Tenant. Landlord's petition sought damages based upon Tenant's alleged breach of the Lease "by failing to pay rent when due." Tenant's answer denied the allegation and pled as an affirmative defense that Tenant "properly terminated" the Lease pursuant to Paragraph 17.[1]

         Thereafter, two bench trials in this matter were held. After the first bench trial, the trial court found in favor of Tenant. Landlord appealed. This Court reversed and remanded for the trial court to make a factual determination as to "[w]hether Landlord failed to repair and restore the Premises per the requirements of Paragraph 17[.]" Morris Branson Theatre, LLC v. Cindy Lee, LLC, 472 S.W.3d 635, 642 (Mo. App. 2015). After the second bench trial, the trial court found in favor of Landlord. The trial court ruled against Tenant on its affirmative defense, finding that "the repairs to the roof were substantially complete on or before August 29, 2012." This appeal followed.

         Standard of Review

         In this court-tried case, our review is governed by Rule 84.13(d) and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).[2] In Re Bell, 481 S.W.3d 855, 858-59 (Mo. App. 2016). The judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. "The application of this standard of review varies depending on the burden of proof applicable at trial and the error claimed on appeal to challenge the judgment." Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012). In White v. Dir. of Revenue, 321 S.W.3d 298 (Mo. banc 2010), our Supreme Court explained:

When the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party's uncontradicted or uncontroverted evidence. If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party. Generally, the party ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.